Supreme Court will hear case of police accessing unlocked cellphone

OTTAWA—The Supreme Court of Canada is taking on the question of whether police can access information on a cellphone that isn’t protected by a password.

The court has agreed to hear an appeal from Kevin Fearon, who was arrested after an armed robbery in Toronto in 2009.

Police obtained photos of a gun and cash, as well as a text message about jewelry, after taking a closer look at Fearon’s phone, which was unlocked.

After he was convicted, Fearon appealed, arguing that police breached his rights when they examined the phone after his arrest.

The Ontario Court of Appeal said it was all right for the police to look through the phone in a cursory fashion to see if there was evidence relevant to the crime, but after that they should have stopped to get a search warrant.

Had the phone been password-protected or otherwise locked to anyone other than its owner, “it would not have been appropriate” to look through the phone without a search warrant.

The appeal judges referred to a decision in a murder case in which the judge did not allow evidence from a personal electronic device because it “functioned as a minicomputer,” which has a high expectation of privacy.

The contents of that device were only extracted by a police officer using specialized equipment, the judges noted.

“There was no suggestion in this case that this particular cellphone functioned as a ‘minicomputer,’ nor that its contents were not ‘immediately visible to the eye,’“ the court said in its ruling.

“Rather, because the phone was not password-protected, the photos and the text message were readily available to other users.”

Defence lawyer Sean Robichaud said that approach failed to take into account the amount of information many people keep on their cellphones these days.

Fearon also appealed over the issue of access to a lawyer, saying he was left in an interview room for five hours without an opportunity to contact counsel.

The Supreme Court, however, said the appeal will be limited to the cellphone issue.

As usual, the justices gave no reasons for agreeing to hear the case.

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